The US Supreme Court on Tuesday declined an invitation to enter a raging election-year legal dispute in Ohio over the state legislature’s decision to eliminate one form of early voting for most voters in the three days prior to the Nov. 6 election.
The action lets stand earlier decisions clearing the way for all Ohio voters to engage in early voting on the Saturday, Sunday, and Monday before Election Day.
The high court action comes less than three weeks before Election Day and more than two weeks after voters in Ohio began casting early ballots on Oct 2.
At issue in the case was a law that closed one form of early voting in Ohio on the three days before Election Day, for all voters except military personnel and overseas residents.
Critics saw the move as an attempt by the Republican-controlled legislature to undercut the ability of minority voters to cast ballots by restricting early voting on the weekend before the election.
The Obama campaign and the Democratic Party sued, claiming the state law granted an unfair advantage to certain voters but not others in violation of the Constitution’s equal protection clause.
A federal judge agreed and ordered the state to let everyone cast in-person absentee ballots on those three days. That decision was upheld by a panel of the Sixth US Circuit Court of Appeals.
The lower courts found that early voting tended to be used by women, older and lower-income voters, and a significant number of African-Americans. The election law changes posed more than just an inconvenience or burden to those voters, the courts said.
The judges concluded that potentially “thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.”
The state’s explanation for the voting change (to allow election boards to prepare for Election Day) did not justify the potential disenfranchisement of those voters, the courts ruled.
The appeals court cited the controversial US Supreme Court decision Bush v. Gore: “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
In the Ohio case, the lower courts ordered state election officials to offer early voting to all voters on the three days prior to the election.
Ohio officials last week asked the Supreme Court to temporarily block the ruling and allow the state law to take full effect for the approaching election. On Tuesday, the court rejected the request without comment.
Ohio officials had argued that the appeals court judges wrongly concluded that selectively allowing military voters to engage in in-person absentee voting on the three days prior to Election Day would undermine other Ohio voters’ fundamental right to cast a ballot.
Rather than invading a fundamental right, the new law was merely an inconvenience to voters who had several other means to cast their ballots, they argued.
“Based on nothing more than supposition, the Sixth Circuit held that this modest reduction of in-person absentee voting disenfranchised thousands of voters,” William Consovoy, special counsel to the Ohio secretary of state, wrote in his brief to the court. “The decision below is unsustainable,” he said.
Aside from the three disputed days, Ohio offers 230 hours of in-person absentee voting, 750 hours of absentee voting by mail, and 13 hours of voting on Election Day, Mr. Consovoy said.
In earlier years, all Ohio voters had been allowed to cast absentee ballots in person on the Saturday, Sunday, and Monday before Election Day. An estimated 100,000 did so in the 2008 presidential election.
In some states, early voting involves opening some of the polls early to allow voters to cast ballots on regular voting machines. Ohio is different.
Early voting in Ohio involves the casting of an absentee ballot. The state provides two methods for casting an absentee ballot – by mail or in person at the local supervisor of elections office.
Early in-person voting began in Ohio on Oct. 2 and under the new law would have continued until the Friday before Election Day. Now, under the lower court rulings, early voting will continue for all Ohio voters from Oct. 2 until Election Day.
Former White House Counsel Robert Bauer, now general counsel of the president’s reelection committee, Obama for America, filed the lawsuit on behalf of the campaign. He argued that if military voters were allowed to cast ballots during the three days prior to the election, other voters should be allowed to vote then as well.
“Nowhere else in the country will an eligible voter be turned away from a single, open polling place because the polling place is open for some voters, but not for that particular voter,” Mr. Bauer wrote in his brief to the court.
He said the lower court rulings merely allow other eligible voters to vote at open polling places during the three days before Election Day.
Any added burden to election officials for keeping their offices open on Saturday, Sunday, and Monday would be offset by shorter lines on Election Day, he said.
In 2008, some 1.7 million individuals in Ohio voted before Election Day – nearly 30 percent of all votes cast.
Bauer said an emergency stay by the high court blocking the earlier rulings would cause harm to the public by restricting the franchise of “a substantial number of Ohio voters” and “creating uncertainty and confusion amongst voters on the eve of the election.”
Others disagree. The new Ohio law created neither a burden nor disenfranchisement, according to 15 Republican attorneys general who filed a friend-of-the-court brief supporting Ohio.
“It is a legal and logical non sequitur to say, as did the Sixth Circuit, that 100,000 Ohio voters who voted in person during the three days preceding the last Election Day will ‘be precluded’ from voting after Ohio’s change,” wrote Michigan Solicitor General John Bursch in the 15 states’ brief.
“What about the 23 days of in-person, pre-election voting?” he asked. “What about mailing in an absentee ballot? And, for at least some substantial portion of those 100,000 voters, what about Election Day?”